Texas Criminal Pattern Jury Charges § CPJC 36.1
Texas Criminal Pattern Jury Charges
CRIMINAL DEFENSES
CHAPTER 36 DEFENSE OF PROPERTY
§ CPJC 36.1 Defense of Property Generally
Often facts will create somewhat overlapping issues concerning self-defense (or defense of others) and defense of property. When this is the case, the defendant is entitled to instructions on all applicable defenses.
Distinguishing “One’s Own Property” and “Third Person’s Property.”Texas Penal Code section 9.41 applies to what the section’s title describes as “one’s own property,” while section 9.43 applies to what the title describes as “third person’s property” or, as provided in the body of the statute, “property of a third person.”
Apparently, however, title to property does not control. Section 9.41(a) seems to apply if the defendant was in lawful possession of the property, regardless of title. Section 9.41(b) applies if the defendant was recently in lawful possession of the property and was unlawfully dispossessed of the property. This means that section 9.43 applies only if the third-person titleholder did not give the defendant possession.
Requirement of “Lawful Possession.”Texas Penal Code section 9.41 applies to a person “in lawful possession” of land or personal property.
The court in Breakiron v. State, 79 S.W.3d 103 (Tex. App.–Texarkana 2002, no pet.), rejected the argument that a person who is the (or an) “owner” of property under Penal Code section 1.07(35) is in lawful possession of it. Thus a defendant cannot rely on the defense if the facts show no more than that the defendant had “a greater right to possession of the property” than the complainant. “Whether someone has lawful possession of property,” the court observed, “will depend on the nature of the property, the circumstances under which it is held, and the law applicable to such property and such circumstances.” Breakiron, 79 S.W.3d at 106.
In Breakiron, the property was drugs. The court applied section 481.002(24) of the Controlled Substances Act: ” ‘Lawful possession’ means the possession of a controlled substance that has been obtained in accordance with state or federal law.” Tex. Health & Safety Code § 481.002(24). No jury instruction was required when the defendant made no claim that the drugs at issue had been obtained in a lawful manner. Breakiron, 79 S.W.3d at 106.
In view of the lack of more definitive case law on the meaning of “lawful possession,” the Committee concluded that the term should not be defined. Jurors should be left to apply the common meaning of the term.
Texas Criminal Pattern Jury Charges § CPJC 36.1